Custom, Excise & Service Tax Tribunal
M/S. Mahendra Steel Industries vs C.C.E. & S.T. Jaipur-I on 5 September, 2014
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, NEW DELHI, PRINCIPAL BENCH NEW DELHI,
COURT NO. III
Date of Hearing: 30.05.2014
Stay Application No. E/Stay/53857/2014 in
Appeal No. E/53447/2014-EX[SM]
M/s. Mahendra Steel Industries Appellant
Vs.
C.C.E. & S.T. Jaipur-I Respondent
Present: -
Ms. Sukriti Das, Advocate - for the appellant Sh. Amresh Jain, DR for the Respondent Coram : Rakesh Kumar Member (Technical) STAY ORDER NO: 53519/05.09.2014 Per Rakesh Kumar:-
In this case the appellant is manufacturer of Hot Re-rolled products of Iron & Steel vide Order-in-Original dt. 07.04.2000, the Deputy Commissioner confirmed the duty demand of Rs.88,440/- against the Appellant along with penalty of Rs.3500/-. According to the appellant they received this order on 01.06.2000 and as per record of Commissioner (Appeals)s office, this appeal was filed on 14.09.2000. This appeal was disposed of by the Commissioner (Appeals) after about 13 years vide Order-in-Appeal dt. 22.04.2014 by which he dismissed appeal on time barred without going into the merits on the ground that since the Order-in-Original had been issued on 07.04.2000, it is presumed to have been received by the appellant within a weeks time and thus there is delay of five months in filing of this appeal which cannot be condoned. In this regard para 9 of the Order-in-Appeal is reproduced below:-
I thus find that the impugned order is deemed to have been served on/received by the appellant within a week of the date of dispatch which is the normal period of delivery of letters by the Postal Authorities. The appellants have filed the appeal after more than two months from the date of dispatch of impugned order. I further find that the appeal under Section 35A of Central Excise Act, 1994 is required to be filed within three months from the date of receipt of the order but the appellants h ad filed the same after almost five months from the date of dispatch of impugned order. However, the period of further 30 days can be allowed for the sufficient cause but in this case the said period of thirty days has been expired. In the above circumstances, I hold that appeal is time barred.
1.1 Against the above order of the Commissioner (Appeals) this appeal has been filed by the appeal along with stay application.
2. Heard both the sides.
3. Though the matter is listed for the hearing of the stay application only, after hearing of this matter for sometime the Bench was of the view that the matter can be taken for final disposal. Accordingly after waving deposit and with the consent of both the sides the matter was heard for final disposal.
4. Ms. Sukriti Das, Advocate, Learned counsel for the appellant, pleaded that the Order-in-Original passed by the Assistant Commissioner bears the date as 07.04.2000, that in terms of the provisions of Section 35, as the same stood during the period of dispute, the appeal before the Commissioner (Appeals) could be filed within period of three months from the date of communication of decision or order, and the Commissioner (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of three months, allow it to be presented within a further period of three months, that power of condonation of delay beyond three months was reduced to 30 days only w.e.f. 11.05.2001 and as such during the period of dispute the delay in filing of appeal upto three months could be condoned and that the original period of limitation of three months is to be counted from the date of communication of the order, that as per the provision of Section 35 C, the order is to be despatch by registered post with Acknowledgement and there is no authority to presume that the order despatch by Register Post A.D would be received within one week that the Appellant had received the Assistant Commissioners order only on 01.06.2000 and had filed the appeal on 14.09.2000 and as such there was delay of 14 days which was well within the condonation limit, that in any case even if from the Commissioner (Appeals)s order that the date of communication was 14.04.2000 is accepted, still there would be delay of only two months, which as per the Provisions of Section 35 at that time was well within powers of condonation limit, that Commissioner (Appeals) has not taken into account the Provisions of Law 35 as the same stood during the period of dispute, that in any case the date of communication cannot be presumed to be one week from the date of dispatch, that if the Revenue alleged that the order was received within a week of its despatch, the evidence in this regard acknowledgement card must be produced, which has not been produced and that in view of the above submissions, the impugned order is not sustainable.
5. Sh. Amresh Jain, the Learned DR, defended the impugned order by reiterating the findings of the Commissioner (Appeals) and pleaded that since the order had been despatched by Register A.D. in terms of the Provisions of Section 35F the same should be deem to have been received by the appellant.
6. I have considered the submissions from both the sides and perused the records. There is no dispute that the Order-in-Original against which the appeal had been filed before the Commissioner (Appeals) had been dispatched by Registered AD and there is also no dispute about receipt order by the appellant. The dispute is only about the date of receipt. While according to the appellant, they received this order on 01.06.2000, according to the Department this order should be deem to have been received within one week from the date of dispatch which according to the Commissioner (Appeals) is the normal period of delivery of latter by the Postal Authority. In my view, this presumption of the Commissioner (Appeals) is totally incorrect and there is no base for the same. If an order or letter has been despatched by the Department to an assessee by Registered Post AD, in term of the provisions of Section 114 of the Indian Evidence Act, it can be presumed to have been received by the assessee, and if the assessee claims that he did not receive the order/letter, the burden of proof is on him. But the presumption can be made only about the receipt, not about the date of receipt. There is no basis for presuming that a letter/order despatched by Registered Post AD to an assessee would be received by them within weeks time. If the Department disputes the date of receipt as claimed by the appellant, the Department has produce the evidence by bringing on record acknowledge which would contain the date of receipt. Moreover, it is seen that as per the Provisions of Section 35 during the period of dispute, the normal period of limitation for filing of appeal before the Commissioner (Appeals) was three months and on sufficient cause being shown, this period could be further extended by another three months. In this case even if the date of receipt is assumed to be on 14.04.2000 i.e. within a weeks time from the date of the order i.e. 07.04.2000, since the appeal had been filed on 14.09.2000, there would be delay of only two months which was within the condonation limitation and the Commissioner (Appeals) should have heard the appellants plea for delay and should not have been dismissed the appeal as time barred on the ground that the period of delay is the beyond his power of condonation. In view of this the impugned order is set aside and the matter is remanded to the Commissioner (Appeals) for de-novo decision. He should consider the Appellants plea for condonation of delay on filing of appeal as in any case, the period of delay is within his power of condonation and if the delay is condoned he should decide the appeal on merits. The appeal as well as stay application stands disposed off.
[Order dictated in the open court] (Rakesh Kumar) Member (Technical) S.Kaur 1